This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).








State of Minnesota,





Fraenchot Dion Banks,



Filed July 25, 2000


Shumaker, Judge


Hennepin County District Court

File No. 99039302




Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103-2106; and


Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


Keith Ellison, Hassan & Reed, LLP., 2311 Wayzata Blvd., Minneapolis, MN 55405 (for appellant)



Considered and decided by Harten, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.



U N P U B L I S H E D   O P I N I O N



            Appellant Fraenchot Dion Banks challenges the trial court’s imposition of a mandatory minimum sentence, arguing that his constructive possession of firearms while committing a drug offense was insufficient to trigger the application of the statute requiring the minimum sentence.  We affirm.


Minneapolis police officers executed a search warrant at 413 Lowry Avenue North where Fraenchot Banks lived with his fiancée, Deerene West.

In the basement, the police found 16,369 grams of marijuana in baggies.  They found approximately 514 grams of marijuana in drawers at the base of a waterbed in the first-floor bedroom.

Banks kept two handguns, a .380 Taurus and an Intertec 9-mm, in the headboard of the waterbed.  He had permits for both guns.

Banks had the guns because his home had been burglarized in the past and he also wanted to protect his fiancée.

After a bench trial on stipulated facts, the trial court found Banks guilty of a third-degree controlled substance crime and sentenced him to a mandatory minimum of 36 months in prison because Banks had possession of firearms at the time of the offense.



On appeal, Banks contends that his constructive possession of the firearms coupled with his constructive possession of the marijuana did not increase the risk of violence and did not warrant the imposition of the mandatory minimum sentence.


            Any defendant convicted of a predicate controlled-substance crime and who, “at the time of the offense, had in possession * * * a firearm” must be sentenced to prison for a minimum of three years.  Minn. Stat. § 609.11, subd. 5 (1998).  Banks concedes that a third-degree controlled substance crime is a predicate offense under section 609.11, subdivision 5, and that he had constructive possession of the firearms.

State v. Royster, 590 N.W.2d 82, 84 (Minn. 1999), concluded that “constructive possession is a component of the mandatory minimum sentence statute.”  According to Royster, constructive possession alone will not trigger the mandatory minimum sentence requirement.  Rather, the constructive possession of the firearm must be such to substantially increase the risk of violence.  In assessing this risk, courts


examine all aspects of the firearm in possession to determine whether it was reasonable to assume that its presence increased the risk of violence and to what degree the risk is increased: the nature, type and condition of the firearm, its ownership, whether it was loaded, its ease of accessibility, its proximity to the drugs, why the firearm was present and whether the nature of the predicate offense is frequently or typically accompanied by use of a firearm, to name a few of the considerations.


Id. at 85.  On appeal, we determine whether the evidence was sufficient to permit the trial court  to “reasonably infer that possession of the firearm substantially increased the risk of violence” related to the drug possession of which Banks was convicted.  Id.

The trial court determined that, even though Banks’s loaded firearms were not present because of the marijuana, considering the amount and location of the marijuana, the firearms significantly increased the risk of violence.

The firearms were operable, loaded, and in close proximity to some of the marijuana.  Because Banks bought the guns after his home was burglarized and for the protection of his fiancée, it would be a reasonable inference that he kept them in a place of ready accessibility in case of a burglary or other threat to his home.  It would be reasonable to infer that large quantities of marijuana on the premises might attract burglars or other invaders and that their presence might increase the risk that Banks or his fiancée would use the firearms to repel them and to defend against the loss of the drugs.

We hold that the evidence of Banks’s constructive possession of the firearms was sufficient to support a reasonable inference that their presence substantially increased the risk of violence.  The trial court did not err in imposing the mandatory minimum sentence.